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October 16, 2014 by

Some strange and objectionable goings on in Houston, where lawyers for the city issued subpoenas for the sermons of five preachers who are trying to overturn a city ordinance that bans discrimination against lesbians, gays, bisexual and transgender people.

Houston’s embattled equal rights ordinance took another legal turn this week when it surfaced that city attorneys, in an unusual step, subpoenaed sermons given by local pastors who oppose the law and are tied to the conservative Christian activists that have sued the city.

Opponents of the equal rights ordinance are hoping to force a repeal referendum when they get their day in court in January, claiming City Attorney David Feldman wrongly determined they had not gathered enough valid signatures to qualify for the ballot. City attorneys issued subpoenas last month during the case’s discovery phase, seeking, among other communications, “all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.”

By yesterday, the administration of Houston mayor, Annise Parker, which had managed to offend religious leaders who support the anti-discrimination ordinance, said the subpoena was too broadly drawn. Carol Kuruvilla of the Huffington Post writes:

“Neither the mayor nor City Attorney David Feldman were aware the subpoenas had been issued until yesterday,” the mayor’s spokesperson Janice Evans told the Huffington Post over email. “Both agree the original documents were overly broad. The city will move to narrow the scope during an upcoming court hearing.”

This means the city will still seek to collect any communication issued by these pastors that mention the petition against the hotly contested Houston Equal Rights Ordinance (HERO).

The Alliance Defending Freedom, an advocacy group, said the move to scale back the subpoenas is just an attempt to “turn down the heat.” The ADF has filed a motion to shut down the subpoena request completely.

Sarah Posner of Religion Dispatches writes that while the Christian right has long said predictably horrible things about Parker, who is a lesbian, the subpoenas “represent a strange overreach, one that additionally failed to foresee the predictable parlaying of the incident into a conservative cause celebre. As Rachel Held Evans tweeted, “I support LGBT equality but the subpoena thing in Houston seems intrusive & counterproductive. Violates liberty + feeds persecution complex.”

Rob Boston, Director of Communications for Americans United for Separation of Church and State, said in a statement, “Government authorities have the right to subpoena pastors and even ask for sermons if there is a reasonable suspicion of wrong-doing. … That doesn’t appear to be the case here. The targeted pastors are not even parties to the lawsuit, and the scope of the subpoenas is strikingly broad. This has the look of a fishing expedition. I’m not surprised that the pastors are resisting the subpoenas, and, assuming there is not more to this story than has been reported, I think they might be successful.”

Issue advocacy is protected speech, and for churches there are additional protections under the free exercise clause. There are some rules about registering as a lobbyist that would affect c3's that exceed certain spending thresholds, but most attorneys I've spoken to don't think they could be made to stick on churches, which probably wouldn't exceed the threshold in any case. Thus, churches are free to advocate for or against legislation or ballot initiatives. It's advocating a party or candidate that gets you into trouble. The mayor correctly acknowledged that this was overreach.

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October 17, 2014 8:19 am

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tgflux

"conservative Christian activists that have sued the city"

This bears repeating. The city's subpoenas were (rightly or wrongly) part of the legal RESPONSE to the anti-gay lawsuit.

The sermons were given in tax-exempt churches. For the privilege of tax-exemption, preachers do NOT have totally "free speech". They are legally obligated to avoid direct political endorsements (e.g. "Vote No on the Gay Rights Ordinance").

I believe that the city would be justified in checking to see whether these restrictions on tax-exemptions in any case. That the pastors are complaining when their affiliates are suing the city, is the epitome of gall.

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